Case C-500/07 P: Appeal brought on 19 November 2007 by Territorio Energia Ambiente SpA (TEA) against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-175/07 Territorio Energia Ambiente SpA v Commission of the European Communities
Date: 2007-11-19
Institutions: Court of Justice
Subjects: Italy, State aid, appeal, public sector, tax exemption

9.2.2008

EN

Official Journal of the European Union

C 37/3

(g) the clear sense of

the arguments and the evidence was
distorted, and the reasoning is illogical and inconsistent
with the Community case-law on compensation for
non-material damage. For the purposes of rejecting the
claim for damages in relation to breach of the principle that
the administrative procedure must be of reasonable duration
or of the Commission's duty of vigilance, the Court of First
Instance was not entitled to use the arguments exclusively
concerning exclusion from the public procurement proce-
dures or failure to award a public supply contract.

(1) [2000] ECR I-203.
(2) [2006] ECR I-10833.

Action brought on 14 November 2007 — Commission of
the European Communities v Czech Republic

(Case C-496/07)

(2008/C 37/03)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

Form of order sought

C-47/02. The requirement laid down in Czech law that the
master of a ship must be of Czech nationality is absolute. The
relevant provisions of Czech law do not take into account the
way in which and extent to which the master of a ship in reality
exercises the powers conferred by public law, as required by the
abovementioned case-law of
the
European Communities. The mere fact that Czech law entrusts
masters of ships flying the Czech flag with powers which fall
within the ambit of powers conferred by public law is not
enough to warrant use of the derogation from the freedom of
movement for workers laid down in Article 39(4) of the EC
Treaty.

the Court of

Justice of

the European Communities is of

The Commission of
the
opinion that the Czech Republic is under an obligation to bring
its domestic legislation into conformity with the case-law of the
Court of Justice of the European Communities, notwithstanding
the fact that (according to the statements of the Czech Republic)
there are currently no ships flying the Czech flag.

(1) Case C-405/01 Colegio de Oficiales de la Marina Mercante Espagñola v
Administración del Estado [2003] ECR I-10391, concerning Spanish
legislation reserving the post of master and chief mate on ships
flying the Spanish flag to persons with Spanish nationality.

(2) Case C-47/02 Albert Anker, Klaas Ras a Albertus Snoek v Federal
Republic of Germany [2003] ECR I-10447, concerning German legisla-
tion reserving the post of captain on ships flying the German flag
and engaged in small-scale maritime shipping (‘Kleine Seeschiffahrt’) to
persons with German nationality.

Appeal brought on 19 November 2007 by Territorio
Energia Ambiente SpA (TEA) against the order made by
the Court of
(Fourth Chamber) on
Instance
17 September 2007 in Case T-175/07 Territorio Energia
Ambiente SpA v Commission of the European Communities

First

— Declare that, in so far as Czech domestic legislation reserves
the exercise of the post of captain of a ship flying the Czech
flag to persons with Czech nationality, the Czech Republic
has failed to fulfil its obligations under Article 39 of the EC
Treaty;

— Order the Czech Republic to pay the costs.

(Case C-500/07 P)

(2008/C 37/04)

Language of the case: Italian

Pleas in law and main arguments

Parties

In the above action the Commission relies on the following
pleas:

Appellant: Territorio Energia Ambiente (TEA) (represented by: E.
Coffrini and F. Tesauro, avvocati)

Czech domestic legislation (Law No 61/2000) places
the
operator of a ship under an obligation to ensure that the master
of a ship flying the Czech flag is a citizen of
the Czech
Republic.

That clear and completely unconditional requirement to have
Czech nationality,
in the opinion of the Commission of the
European Communities, conflicts with the findings reached by
the European Communities in Case
the Court of
C-405/01 (1) and C-47/02 (2). The Commission draws attention
in particular to the findings in paragraph 44 of the judgment in
the judgment in Case
Case C-405/01 and paragraph 63 of

Justice of

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— annul and/or amend in its entirety the order of the Court of
First Instance at present under appeal, and rule as appro-
priate;

— grant the forms of order already sought at first instance.

C 37/4

EN

Official Journal of the European Union

9.2.2008

Pleas in law and main arguments

by Article 66(14)

By the Commission decision of 5 June 2002 (1) ‘on State aid …
in the form of tax exemptions and subsidised loans to public
utilities with a majority public capital holding’, the income tax
exemption scheme provided for by Article 3(70) of Law
No 549/1995 and
of Decree-Law
No 331/1993, as converted and amended, in favour of joint-
stock companies with majority public
shareholdings and
providing local public utilities was declared to constitute State
aid incompatible with the common market. The Commission
decision did not
relate to specific companies but covered
companies established within the terms of Article 22 of Law
No 241/1990 with majority public shareholdings. The decision
was for that reason not notified to any company (and was not
notified to the appellant) as no individual addressees were speci-
fically identified. The Italian State, by way of Legislative Decree
No 10 of 15 February 2007, gave effect to the abovementioned
decision, allocating the task of recovery to the revenue authori-
ties. Accordingly, on 29 March 2007, the Mantova revenue
office sent to the appellant company a payment demand for the
of
EUR 1 748 289,75
sum of
capital
EUR 912 180,64.

interest

plus

It is submitted that that finding is without basis, also in the light
of the judgments in Case 730/79 Philip Morris Holland (2), Case
323/82 Intermills (3), Case T-358/94 Air France (4), and, in par-
ticular, the judgment of the Third Chamber of the Court of
Justice in Joined Cases C-346/03 and C-529/03 Atzeni and
Others (5), for which reason it is requested in the present appeal
that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought imme-
diately after the appellant company had become aware that it
was one of the addressees of the Commission's decision, that is
to say, when it was notified of the payment demand issued by
the revenue office.

The order of the Court of First Instance is also challenged on
the ground that
to a misapplication of
effect
Article 225 EC.

it gave

The application for annulment of the Commission decision is to
be treated as inherently linked to the request that the appellant
not be made subject to that decision. It is accordingly requested
that the order made at first instance be amended, also in regard
to the declared lack of competence ratione materiae on the part
of the Court of First Instance.

The appellant company, however,
is not a company with a
majority public shareholding, but is, rather, entirely public, with
the result
‘the Commission's findings and its decision’
cannot apply to it.

that

The appellant has in-house responsibility for local public utili-
ties, the management of which had previously been entrusted by
the commune of Mantova to the municipally-owned under-
taking (ASM), which was
transformed into the appellant
company pursuant to Law No 127/97.

(1) OJ 2003 L 77, p. 21.
(2) [1980] ECR 2671.
(3) [1984] ECR 3809.
(4) [1996] ECR II-2109.
(5) [2006] ECR I-1875.

The appellant manages the public utilities under a private struc-
ture, within an essentially local context, without being able to
influence free competition, which cannot exist as there is no
market.

Appeal brought on 19 November 2007 by S.A.BA.R. SpA
against the order made by the Court of First Instance
(Fourth Chamber) on 17 September 2007 in Case T-176/07
S.A.BA.R. SpA v Commission of the European Communities

A company with a wholly public shareholding is nothing other
than an indirect body of the associated communes, which are
the actual recipients of the fiscal aid with which the Commis-
sion takes issue.

On objective and subjective grounds, therefore, the tax exemp-
tion granted to the appellant cannot be classified as unwarranted
State aid at variance with the requirements of Article 87 EC.

Parties

(Case C-501/07 P)

(2008/C 37/05)

Language of the case: Italian

For the reasons outlined, an action was brought before the
Court of First Instance against the abovementioned Commission
decision. It was registered as Case T-175/07 and assigned to the
Fourth Chamber. A decision in the case was given by way of an
order of the Court of First Instance of 17 September 2007
declaring the action to be inadmissible on the ground of failure
to comply with the time-limit laid down in the fifth paragraph
of Article 230 EC, according to which the action for annulment
ought to have been brought within two months of the publica-
tion of the contested measure, or of its notification to the appel-
lant or, in the absence thereof, of the day on which it came to
the knowledge of the latter, as the case may be, in accordance
with Article 102(1) of the Rules of Procedure of the Court of
First Instance.

Appellant: S.A.BA.R. SpA (represented by: E. Coffrini and F.
Tesauro, avvocati)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— annul and/or amend in its entirety the order of the Court of
First Instance at present under appeal, and rule as appro-
priate;

— grant the forms of order already sought at first instance.